SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0189
| KIRSTEN LEIGH MACKINTOSH | Appellant |
| v | |
| CHRISTOPHER RICHARD JOHNSON and STEPHEN ALEXANDER JOHNSON (as executors of the estate of RICHARD JOHN JOHNSON) | Respondents |
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| JUDGES | BUCHANAN and WHELAN JJA and HARGRAVE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 November 2012 |
| DATE OF JUDGMENT | 8 February 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 10 |
| JUDGMENT APPEALED FROM | Mackintosh v Johnson (Unreported, County Court of Victoria, Judge Misso, 11 November 2011) |
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EQUITY - Unconscionable conduct – Relationship between man and woman – Money paid by man to or for the benefit of the woman - Whether man at special disadvantage at the time of the payments - Infatuation with the woman and ‘clouded judgment’ not sufficient to constitute special disadvantage – Whether payments were gifts – Appeal allowed – Orders of below judge set aside - Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; Louth v Diprose (1992) 175 CLR 621 applied and distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Crutchfield SC Ms B Tulloch | Jane Curtis & Associates |
| For the Respondents | Mr J Isles | Tolhurst Druce & Emmerson |
THE COURT:
Parties and introduction
Richard Johnson and Kirsten Mackintosh had a brief intimate relationship. At the time, Mr Johnson was a long-divorced man aged 73, and Ms Mackintosh was a woman aged 45, in the course of separating from her husband, with a four year old child and two teenage children from a prior marriage. Although brief, the relationship was interspersed with separations and reconciliations.
Their relationship began with a sexual encounter in August 2008. By February 2009, Mr Johnson had paid Ms Mackintosh about $175,000 to support her business, and $480,000 to buy a house in her name as sole proprietor. All sexual relations ceased after 17 January 2009. Mr Johnson had given Ms Mackintosh the deposit on the house on that day.
The relationship finally broke down in April 2010. Mr Johnson then sued Ms Mackintosh in the County Court. He claimed (amongst other small claims) repayment of the $175,000 paid for the purposes of her business and a transfer to him of the house purchased in her name with his money. Mr Johnson claimed that he was entitled to that relief in equity, on three grounds: (1) unconscionable conduct, because he made the payments acting under a special disability, that Ms Mackintosh knew of that disability, and that she unconscientiously exploited it; (2) constructive trust, because he made the payments in the course of a joint endeavour with Ms Mackintosh and the basis of that joint endeavour, a continuing relationship between them, ceased to exist; and (3) equitable estoppel, because Ms Mackintosh promised she would live with him in the house if he paid for it and she unconscionably resiled from that promise.
By the time of trial, Mr Johnson was 76 years old and was dying from mesothelioma. He gave evidence from a hospital bed in Mackay and died three…
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- Mackintosh v Johnson [2013] VSCA 10
- Case
- [2013] VSCA 10
- Decision Date
CaseChat Overview and Summary
The central legal issue in this appeal was whether the trial judge correctly determined that the payments made by the plaintiff to the defendant were gifts. This required examining the nature of the relationship between the parties, the circumstances under which the payments were made, and whether the plaintiff was at a special disadvantage at the time of the transactions. Additionally, the court had to consider whether the plaintiff's infatuation and clouded judgment were sufficient to establish a special disadvantage, and if the payments were indeed gifts as found by the trial judge.
In addressing these issues, the court carefully reviewed the evidence and the reasoning of the trial judge. It was determined that the trial judge had misapplied the principles set out in Commercial Bank of Australia Ltd v Amadio and Louth v Diprose. The court found that while the relationship between the parties was close, the evidence did not support a finding that the plaintiff was at a special disadvantage, nor did it establish that the payments were gifts. The court held that the infatuation and clouded judgment did not constitute a special disadvantage in the legal sense required to set aside the transactions. Consequently, the appeal was allowed, and the orders of the trial judge were set aside.
The court's final orders were to reinstate the claim for the recovery of the payments made by the plaintiff to the defendant, subject to further evidence and arguments on the nature of the relationship and the circumstances of the payments. This decision underscored the importance of clearly establishing special disadvantage and the nature of transactions in claims of unconscionable conduct.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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